From Boston Bar Journal: From the Trenches: The Criminal Defense Bar, Transparency, and Forensic Science

The ProfessionBy Anne Goldbach and Nathan Tamulis

We are attorneys for the Committee for Public Counsel Services (CPSC). As public defenders who specialize in forensics, we provide help and support to a multitude of criminal defense attorneys from all over the state. Public defenders and private court-appointed attorneys call, visit, or email us with forensics questions in almost any area you can think of where forensics plays a role in criminal cases.

Last August, on a beautiful late summer day, we traveled to Devens, Massachusetts to participate in the five week training of a very large class of new public defenders. Our regular work would be done in the early morning, during breaks, and in the evenings. The day was proceeding well, with sessions on criminal defender practice, the right to counsel, court structure, and client relations. Suddenly, the afternoon was disrupted by an important and startling announcement: Governor Patrick had ordered the immediate closing of the Department of Public Health (DPH) drug lab in Jamaica Plain! Email was pouring in, the story was all over the web, and reporters were clamoring to reach us. It was hard to imagine what sort of problems would justify shutting down the entire lab indefinitely.

We had been on alert about work coming from this drug lab since February, 2012 when we learned that a breach of protocol had occurred in June, 2011. We had already advised the defense bar that it would be unwise to accept at face value assertions made by the DPH and some prosecutors – that there had been only one minor breach of a clerical nature that hadn’t affected the accuracy or integrity of the drug analyses. In short order, we learned that Colonel Alben of the Massachusetts State Police had announced that a chemist involved in testing drugs for thousands of cases from 2003 to early 2012 had breached procedures in the handling of evidence. There was concern that people, many of them CPCS clients, were wrongly convicted on tainted evidence. We were eager to find out what the chemist had done, what other problems existed at that lab, and what the authorities knew that we didn’t yet know.

MELENDEZ-DIAZ & THE NAS REPORT

In the chaotic days that followed, we scrambled to learn more and to advise defense attorneys about how to proceed. In the midst of this, we realized that we were much better equipped to face the challenges of the drug lab scandal than we would have been just four years ago – thanks to a landmark Supreme Court decision and a comprehensive National Academies of Sciences (NAS) Report.

Until 2009, notarized certificates of drug analysis were sufficient to prove that a seized item was a controlled substance. That changed when the Supreme Court handed down the decision Melendez-Diaz v. Massachusetts, which held that pursuant to Crawford v. Washington, certificates of drug analysis were testimonial in nature and drug analysts were necessary witnesses for purposes of the Sixth Amendment. Thus, the Confrontation Clause of the 6th Amendment of the United States Constitution requires that defendants have the ability to confront and cross-examine drug analysts at trial.

This finding was complementary to another watershed moment in 2009 – the publication of the NAS Report, Strengthening Forensic Science in the United States: A Path Forward. The NAS Report made wide-ranging recommendations in important forensics applications. Justice Scalia quoted the NAS Report in Melendez-Diaz: “[f]orensic evidence is not uniquely immune from the risk of manipulation….. A forensicanalyst responding to a request from a law enforcement official may feel pressure–or have an incentive–to alter the evidence in a manner favorable to the prosecution. Confrontation is one means of assuring accurate forensic analysis…”

Both Melendez-Diaz and the NAS Report advanced essential elements of our criminal justice system: transparency, accountability and scrutiny. Melendez-Diaz underscored an important principle: the Confrontation Clause protects more than the accused; it requires the system to demonstrate that it is an open and fair one, for every citizen can now see into the police car, into the laboratory, and into the courtroom. Now we had the ability to question previously inscrutable chemists on the stand, and the NAS Report provided guidance for framing and directing our questions. Now defense counsel was better equipped to fulfill the duty of scrutinizing forensic science in criminal cases to assure that it is fair and accurate.

This was to be an era of increased scrutiny of the drug labs, of their analysts, and their procedures, oversight, and documentation. This was to be an era of improved accuracy and reliability in forensic science. Both the NAS Report and Melendez-Diaz recognized that in a vacuum, test results from analytical machinery can seem impeccably objective and unimpeachable. But test results are only as good as the people who prepped the samples, maintained and calibrated the machinery, and utilized scientifically validated procedures to produce the results.

THE LAB

In the wake of the drug lab closure, we understood that the teachings of Melendez-Diaz and the NAS Report would be tremendously useful in fighting for our clients’ rights. Moreover, they would help us learn how a lab scandal of this magnitude could happen.

Guided by these two milestones, defense attorneys recognized the importance of educating themselves in detail about technical aspects of drug analysis. They sought the kind of discovery that would allow them to more closely scrutinize the basis of drug analysis and the people who conducted those analyses. They asked for the written procedures, the documentation of equipment calibrations, and the chain of custody which should follow drug samples from the moment of seizure, through the laboratory, and their return to police custody. They developed detailed cross-examination of the chemists who tested drugs in their clients’ cases.

As packages of discovery were turned over, a much clearer and astonishing picture of the lab started to emerge. There were no written testing procedures, no training records, insufficient documentation, insufficient Quality Control and Assurance, lax supervision, and management woes. The lab was unaccredited and unregulated by any third party organizations. Problems went unaddressed for years. One of these problems was Annie Dookhan.

Annie Dookhan was hired in November of 2003. She began testing in earnest in January of 2004 and quickly took the lead by far in number of samples tested. In 2004 and 2005 she performed three times the number of tests than her average co-worker, some of whom had years of experience. This remarkable level of performance continued through her entire eight year career at the lab. She became a mass spectroscopy chemist and also assumed responsibility for other tasks, including instrument maintenance and Quality Control and Assurance tasks. She carried on, unchecked, until the June 2011 discovery of a “small” breach that ultimately led to the unraveling of the entire laboratory. Some of the most alarming allegations thus far are that she falsified records and purposely contaminated drug samples.

GOING FROM SWIFT JUSTICE TO THE LONG HAUL

Months have passed, and the path to justice for our clients is shaping up to be a long march. The task of identifying the hundreds to thousands of clients who have been affected is ongoing. The drug lab scandal has affected so many people – those who are in custody awaiting trial, those who stand convicted on the basis of potentially tainted evidence and are serving sentences or are on probation and parole, and those who have completed their sentences. On the basis of these tainted cases, people have been held in custody by immigration, or lost their jobs, public housing, drivers’ licenses, or even lost custody of their children. The list goes on and on.

Courts are working to find ways to handle these cases. Motions to withdraw guilty pleas and motions for new trials have been heard and will be heard. In some cases, clients have obtained resolutions by way of pleas to lesser charges and more lenient sentences. Other cases are moving to the Appeals Court and the Supreme Judicial Court as the District Attorneys challenge the authority of specially assigned magistrates and the allowance of some motions. Calls from the defense bar for a unified, systemic solution have gone unanswered to date.

The NAS Report says “…. the quality of forensic practice in most disciplines varies greatly because of the absence of adequate training and continuing education, rigorous mandatory certification and accreditation programs, adherence to robust performance standards, and effective oversight. These shortcomings obviously pose a continuing and serious threat to the quality and credibility of forensic science practice.” These were all serious problems at the DPH Drug lab, issues that allowed misconduct to go uncorrected for years.

As put forth by Melendez-Diaz, the heart of our adversarial system is confrontation and inquiry. The defense bar will continue to ask questions of the analysts to see that justice is done for our clients. Armed with the NAS Report, and a new appreciation for how forensics should properly be viewed by the courts, we will continue to fulfill our role as zealous advocates. Proper advocacy by defense counsel is not only important to the rights of individual defendants but also essential to the proper functioning of our justice system. We will improve the system.

ANNE C. GOLDBACH is the Forensic Services Director for the Committee for Public Counsel Services. In this capacity, she acts as a resource on forensics issues and experts for public defenders and private counsel attorneys across the state.

NATHAN A. TAMULIS is a Forensics Support Attorney with CPCS. He has many years of experience in the laboratory and uses that knowledge to assist defense attorneys with forensic issues.